NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.B.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0

A-4846-14T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.B.S. and R.L.G.,

Defendants-Appellants,

_______________________________

IN THE MATTER OF THE GUARDIANSHIP

OF I.D.A.L.G., a minor.

________________________________________

October 19, 2016

Argued October 11, 2016 Decided

Before Judges Sabatino and Currier.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-136-15.

Catherine Reid, Designated Counsel, argued the cause for appellant L.B.S. in A-4845-14 (Joseph E. Krakora, Public Defender, attorney; Ms. Reid, on the briefs).

Richard Sparaco, Designated Counsel, argued the cause for appellant R.L.G. in A-4846-14 (Joseph E. Krakora, Public Defender, attorney; Mr. Sparaco, on the briefs).

Mary L. Harpster, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane L. Scott, Deputy Attorney General, on the brief).

Lisa M. Black, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the briefs).

PER CURIAM

In this consolidated matter, defendants L.B.S. ("the mother") and R.L.G. ("the father"), the biological parents of a three-year-old son I.D.A.L.G. ("Ivan"),1 appeal the Family Part's final judgment dated June 16, 2015 terminating their parental rights after a guardianship trial adjudicating the four criteria of N.J.S.A. 30:4C-15.1(a).

For the reasons that follow, we affirm the trial court's findings as to prongs one and two of the statute, N.J.S.A. 30:4C-15.1(a)(1) and (2), with respect to both parents, but remand for further proceedings as to prongs three and four, N.J.S.A. 30:4C-15.1(a)(3) and (4). We do so in light of the February 2016 removal of Ivan from the resource home where he resided at the time of trial and his concurrent placement by the Division of Child Protection and Permanency ("the Division") with Ivan's paternal grandmother.

The proofs adduced by the Division at the one-day trial established that both parents have long histories of detrimental conduct that have rendered them unable or unwilling to care for Ivan. The mother has had serious and persisting problems with substance abuse, marked by a series of relapses after periodically receiving treatment for her drug dependency. She has not maintained stable employment or independent living quarters. She gave birth to multiple other children before Ivan, several of whom were removed from her care by the Division and none of whom were in her direct care at the time of trial. She also has a history of involvement in domestic violence with the father.

The father likewise has a history of substance abuse and domestic violence. After Ivan's birth, the father was convicted of domestic violence with the mother and incarcerated in Massachusetts. As of the time of oral argument on appeal, his counsel represented that the father is now in a rehabilitation facility in New York.

Ivan was born in November 2012 in Massachusetts. He tested positive for cocaine at birth, prompting social welfare authorities in that state to get involved and place Ivan and his mother in a temporary program. The mother then returned to New Jersey with Ivan to stay with her sister after the father was arrested for domestic violence. After relocating, the mother checked herself into a halfway house in Newark, due to a heroin relapse. She received substance abuse treatment but relapsed again, testing positive for cocaine and opiates two days after completion of another detoxification program.

Meanwhile, Ivan was initially placed in New Jersey with his paternal grandmother R.B., in a residence shared with his paternal great-grandmother V.G. In January 2014, the Division removed Ivan from the home of R.B. and V.G. because R.B. had been substantiated for abuse and neglect in 1987. Ivan was placed by the Division in a resource home, where he was cared for through the time of trial. R.B. frequently visited with Ivan until she was ruled out as a relative placement by the Division in September 2014, due to the prior substantiation. The Division offered visits to both parents, but neither of them saw the child with any frequency. In fact, as of the time of trial, neither parent had visited Ivan in approximately four months.

In the interim, R.B. administratively appealed her substantiation that disqualified her from serving as an alternative placement for Ivan. In April 2015, the Division was informed that R.B.'s appeal of the substantiation was successful. However, as of the time of trial, R.B. and V.G. had not yet completed the parenting classes required to be licensed as a qualified foster home.

Both parents failed to appear for bonding evaluations arranged by the Division. They also failed to complete substance abuse programs by the time of trial.

The Division called as its sole witness at trial a caseworker who recounted the history and services that had been offered by the Division. The caseworker, on whose testimony the trial judge relied, reported that all of Ivan's needs were being met in foster care and that the resource home was interested in adopting him. Given the circumstances, the Division did not deem it necessary to conduct a bonding evaluation of Ivan with the resource placement.

The sole witness for defendants at trial was V.G., Ivan's great-grandmother. She testified that she and R.B. were already taking care of other grandchildren and wanted custody of Ivan as well. V.G. acknowledged that when Ivan was in her care, the mother would occasionally pick him up and return him in a few days, but that no issues concerning his welfare occurred on those occasions.

After considering the evidence, the trial judge issued an oral opinion finding that all four criteria for termination had been established by clear and convincing evidence, pursuant to N.J.S.A. 30:4C-15.1(a). The judge agreed with the Division, joined by the Law Guardian, that both parents had endangered Ivan's safety, health and development (prong one), that they were unable or unwilling to eliminate that risk of harm, and that delay in a permanent placement would add to that harm (prong two). The judge further agreed with the Division and the Law Guardian that the father2 had been offered reasonable services by the Division and that the proffered alternatives with other relatives, namely R.B., had been adequately considered (prong three). Lastly, the judge was persuaded by the Division and the Law Guardian that termination of both defendants' parental rights would not do more harm than good (prong four), finding that it was in Ivan's best interests to remain with the resource home that was committed at that time to adopting him.

Both parents filed timely appeals in July 2015 shortly after the trial court's decision. However, it was subsequently revealed to this court in the briefs on appeal that Ivan was removed by the Division in February 2016 from the resource home and placed with R.B., where he has since remained. As documentation of this significant development, we have been furnished with copies of a series of orders entered by the Assignment Judge under an "FC docket" from January through August 2016, reflecting the trial court's approval of this new placement, along with transcripts of the short proceedings that occurred on those dates.

Although the post-judgment materials we have been provided with are sparse, it appears that R.B. has completed the required parenting classes and is in the process of being licensed as an authorized resource home. It further appears from the limited supplemental record that the Division elected to place Ivan with his grandmother not because of deficiencies of the non-relative resource home, but because, on balance, Ivan would be emotionally better off living with his relatives.

The supplemental materials we have received further indicate that R.B. is interested in adopting Ivan rather than a kinship legal guardianship ("KLG") arrangement with one or both parents. N.J.S.A. 38:12A-1 to -7. However, there is no post-judgment testimony or written certification from R.B. to that effect. We are also mindful that defendants, because of the June 2015 termination of their parental rights, did not participate in the "FC" docket proceedings in the trial court concerning Ivan's new placement.

Defendants urge on appeal that, in light of these developments, the final judgment be reversed in its entirety.3 The Division argues in opposition that the judgment be affirmed, so that the child can achieve permanency sooner with R.B. or, if she does not adopt, possibly with another adoptive family. The Law Guardian takes a slightly different position, supporting affirmance but also being amenable to a remand for an updated assessment of Ivan's current best interests if there is a risk that his placement will change.

We have considered the record before us in light of the applicable law, applying our deferential scope of review in Title 30 matters. See, e.g., N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 534 (2014). Having done so, we affirm the trial court's findings with respect to prongs one and two, but vacate without prejudice to the findings as to prongs three and four and remand for further proceedings on those matters.

The trial court's findings as to both parents with respect to the first two prongs are well supported by substantial, credible, and indeed unassailable, evidence. Both defendants have a lengthy record of failure in providing a stable and secure home for this child. Their substance abuse and behavioral problems with domestic violence have been persistent. They have failed to complete programs successfully that might enable them to stabilize their lives. The recent change in Ivan's placement in no way undercuts the trial court's findings on the first two prongs.

A different course of action is warranted as to prongs three and four. At trial, defendants advocated that termination be denied or delayed, and that Ivan be placed with his grandmother. The trial judge reasonably rejected those arguments based on the status quo at that time. However, the situation has fundamentally changed in that the child is now with the very relatives that his birth parents advocated as a placement at the time of the trial. This court may consider such a change in its decision as it "significantly shift[s] the landscape of [the] family's circumstances." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 232 (App. Div. 2010).

We do not in retrospect conclude that the Division acted unreasonably in removing Ivan from an unlicensed home with a substantiated caregiver, mindful that R.B. had not acted promptly to become qualified in time for trial. However, remand is warranted, with evidentiary hearings appropriate to reassess prongs three and four, with updated proofs to be permitted in the discretion of the trial court, including possible bonding evaluations.

The hearsay representation that R.B. prefers to adopt Ivan rather than enter into a KLG arrangement4 that would allow one or both defendants to have a role in his upbringing must be explored and confirmed in more depth. Accordingly, we direct that R.B. be required to appear at a proceeding in which those options can be explained to her on the record and explored with all counsel present. If feasible, the remand proceedings should be conducted by the judge who tried the case, who we understand is retired but presently serving on recall.

Affirmed in part, vacated in part and remanded in part. We do not retain jurisdiction.

1 We use initials for the parents and a fictitious name for the child to protect his privacy.

2 The mother was not entitled to such services because of the prior multiple terminations of her parental rights concerning her older children. See N.J.S.A. 30:4C-15.1(d). In any event, the record shows that the Division reasonably attempted to provide the mother with substance abuse programs, visitations, and other services.

3 We note that no motion was filed with this court seeking to remand the matter to the trial court after the child was transferred to his grandmother's care in February 2016. Notwithstanding that, on remand the trial court should not penalize Ivan for the delay caused by the appeal when reexamining his current best interests.

4 See N.J.S.A. 3B:12A-1(c) (authorizing KLG only in "relationships where adoption is neither feasible nor likely"). See also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004).